Category Archives: 法治 – Rule of Law

Andrew Li says the growth in the number of applications for judicial review is more a sign that the political process isn’t working properly, and recent remarks by retired judge Henry Litton risk confusing the pursuit of efficiency with the delivery of justice

The citizen’s right of access to the courts to challenge decisions of public authorities by judicial review is an essential feature of our legal system based on the common law. Judicial review by an independent judiciary is fundamental to the rule of law and enables our rights and freedoms to be fully protected. It is rightly regarded as a distinctive feature of our system under “one country, two systems”.

A judicial review challenge cannot be made on political grounds. It must be made on legal grounds. These would include that the challenged decision was inconsistent with statute or the Basic Law, that there had been procedural impropriety in making it, and that it was irrational in the sense that it was beyond the range of decisions open to a reasonable decision-maker.

Consistent with developments in other common law jurisdictions, judicial review cases have increased in the last two decades. The challenges are often funded by legal aid. It is not an exaggeration to say that the growth of judicial review has redefined our legal landscape. This has been due to various factors, including the increase in the volume of legislation for the governance of a complex modern society, the enactment of the Bill of Rights and the Basic Law and citizens’ greater awareness of their rights.

Time and time again, I have tried to explain to the community the nature and limits of judicial review. Judicial review cannot provide a solution to the complex political, economic and social problems which confront our society. The role of the courts is only to determine the limits of legality in accordance with legal principles. Within those limits, the answers to those difficult problems must be found through debate and compromise in the political arena. Citizens must look to the political process for their resolution. The responsibility for the proper and effective functioning of the political process of course rests with the executive authorities and the Legislative Council.

With the growth of judicial review, there has been concern that there have been cases where this process has been abused. In these cases, attempts were made to mount a judicial review challenge on political and not legal grounds. In a recent robust and colourful speech, which is characteristic of this senior legal figure, Henry Litton also expressed such concern.

I too am concerned about this phenomenon. I do not, however, think that attributing improper motives to the unsuccessful applicants in such cases would contribute to a constructive debate on this matter. The common view, which I share, is that this is mainly a reflection of the unsatisfactory functioning of the political process. This is, of course, entirely outside the judiciary’s responsibility.

However, it must be emphasised that the courts have effective ways to stop any attempt to abuse judicial review. Unlike ordinary civil proceedings, an applicant must seek the permission of the court to commence judicial review proceedings. Where such permission is refused, they cannot even begin.

Further, an application must be made promptly and in any event within three months from the time when the grounds first arose unless the court considers that there is good reason for extending time. Moreover, the court may make an appropriate costs order.

Before 2007, the threshold for the granting of permission was relatively low. The test was merely that the case was potentially arguable. In 2007, the Court of Final Appeal discarded this and raised the threshold significantly. The test to be applied is that the court has to be satisfied that there is a reasonably arguable case which enjoys realistic prospects of success. The court observed that it is in the public interest that challenges which fail this test should not proceed.

The granting of permission is an effective filter. By applying this test, the courts are able to screen out attempts to abuse the judicial review process. Many challenges have been stopped in this way.

But once the court is satisfied that the applicant has shown a reasonably arguable case and grants permission for proceedings to commence, the judicial review challenge cannot be regarded as an abuse of the process. Whatever its eventual outcome, the challenge was allowed to commence as the court was satisfied that it had a realistic prospect of success.

Where a judicial review challenge has been allowed to proceed, this may well result in inconvenience to the public authority as it would involve time, expense and delay in the implementation of the decision under challenge. But under the rule of law, convenience and justice are sometimes not on speaking terms.

It would not be right to view judicial review negatively as a nuisance to government. On the contrary, it should be viewed positively.

As our widely respected former secretary for justice, Wong Yan-lung, observed in a speech in 2008: “Effective judicial review is and remains a cornerstone for good governance”. He stated: “I am convinced and … [this] is shared by many … in the government, that the commitment to the high standards of legality, reasonableness and fairness, and the metamorphosis brought about by judicial discipline at times, will improve public administration, and will make Hong Kong a better society and home for our next generation.”

Litton’s speech, as reported in the media, criticised judges for being insufficiently robust in dealing with judicial review cases and the judiciary generally for not meeting contemporary needs. His comments were no doubt well intended. But, in my view, his criticisms are unjustified.

Litton is known to be an enthusiastic advocate of rigorous efficiency in judicial work. Judges must of course deal with cases with reasonable expedition. This is particularly important in judicial review cases. But it must be strongly emphasised that the pursuit of efficiency must not be at the expense of justice. It is of paramount importance to appreciate that the quality of justice must never be compromised.

In dealing with applications for permission to commence judicial review proceedings, a judge must give the matter due consideration before he can decide whether the test of a reasonably arguable case is met. Where he refuses permission, I can understand why, in appropriate cases, a judge decides to deliver full reasons rather than a terse judgment of a few lines. This would enable the disappointed applicant and the public to understand fully why permission was refused. This would enhance respect for the judicial process. Judges should certainly not be criticised for being conscientious or overconscientious.

The impression conveyed by Litton’s speech is that all is not well with the state of the judiciary. In my view, this does not reflect the true position. While there is always room for improvement and reform, I believe that the judiciary is in good shape. There have been many developments in recent years, including civil justice reform, the promotion of mediation and the progress in bilingualism.

I believe that the judiciary continues to be highly respected by the community. We have good and dedicated judges who are fully committed to serving the community by adjudicating disputes, including those involving government, without fear or favour. Our legal system, based on the common law, enshrines the rule of law and is a cornerstone of our society under “one country, two systems”. It commands confidence both within and outside Hong Kong. I have every confidence that it will continue to serve us well in the coming years and beyond 2047.
The honourable Andrew Li Kwok-nang was first chief justice of the Court of Final Appeal from 1997 to 2010

James Marshall and Karen Leung say Hong Kong’s Competition Ordinance, which comes into force next month, could provide a vital boost to the so-called ‘sharing economy’

Hong Kong’s tech-savvy consumers expect personalised, convenient and cost-effective services, and the so-called “sharing economy” has developed to meet this demand. New technologies like Uber connect customers directly with suppliers – in this case, by linking passengers with self-employed taxi drivers in more than 300 cities worldwide.

But Uber has been the subject of fierce debate internationally. Taxi drivers have brought cities such as Paris and London to a standstill in protest over new forms of competition. In Hong Kong, the government faces a choice between protecting 18,000 licensed taxi drivers and promoting the growth of this more innovative sharing economy. Could Hong Kong’s new competition law – which comes into force in December – have a role in shaping the outcome?

The sharing economy challenges traditional business models by offering consumers direct access to business owners, and sectors that have previously been highly regulated – including taxis – are feeling the strain. Uber faces the twin challenge of protests by existing market players and increased regulatory scrutiny. There are questions over whether the legislative framework designed for an “offline” world can deal effectively with business models like Uber.

In August, Hong Kong police raided Uber’s office and arrested staff and five driver-partners for allegedly operating unlicensed transport and failing to carry adequate insurance. Uber has not been charged – yet – but it cannot rest easy given the legal maze it still faces. For example, it is not clear whether Uber is even a taxi service or simply a form of technology. It may seem an esoteric point, but until this question is answered, it remains unclear how Uber should be regulated – if at all. While Uber continues to operate in Hong Kong in spite of the uncertainty, consumers may not be able to take full advantage of its innovative business model until the legal picture becomes clearer.

“Private kitchens” are often regarded as Hong Kong’s earliest form of the sharing economy. They emerged as a popular alternative to licensed restaurants more than a decade ago when “home chefs” began feeding customers from their domestic kitchens. Despite such a practice technically breaching health and safety rules, the government responded with a more flexible regulatory regime that balanced innovation and consumer safety. In Hong Kong, it seems that if there is a will to support innovative business models, a way can be found.

Taxi drivers block a road during a protest against Uber in central London. Photo: ReutersSo could Hong Kong’s new Competition Ordinance be the boost Uber needs? Hong Kong has restricted available taxi licences to 18,000 – a ratio of nearly 1 to 400 people. The sector has been relatively protected, with regulatory and policy barriers to prevent unlicensed competitors entering the market. Uber has changed the landscape significantly.

Hong Kong’s new competition law will prohibit abuse of market power and anti-competitive agreements. It remains to be seen how the government, which has invested so much in promoting the ordinance, will respond to a case like Uber – will the new law help break up the current licensed taxi monopoly?

This debate is not confined to Hong Kong. The High Court in London recently dismissed a claim that Uber’s app is a “taximeter” – a device only permitted in licensed black cabs. While competition law arguments have not been at the centre of this case, Uber could potentially challenge restrictions on its operations as an abuse of market power.

The European Commission is also investigating bans on Uber in France, Germany and Spain. Hong Kong shares the same fundamental rules as the UK and EU, so where Europe leads in competition policy, Hong Kong may follow.

Hong Kong prides itself on being one of the most open and pro-business economies in the world. This new legal framework presents an exciting potential new route to fast-track change and innovation.
James Marshall is a partner, and Karen Leung is an associate, in the antitrust and competition team at Berwin Leighton Paisner LLP

This week will mark the official opening of the new premises of the Court of Final Appeal at the building which housed previously the Legislative Council and originally the Supreme Court. This is an event of great significance.

This will be the court’s permanent home. The renovations are of the highest standard. The community can be justly proud of it. With its central location, this historic monument will stand as a strong symbol of the continuing vigour of the rule of law with an independent judiciary in Hong Kong as part of China under “one country, two systems”. Under the rule of law, no one, however high his position, is above the law.

These are challenging times for our community. We are undergoing rapid changes – politically, socially and economically. In the process of change, the engagement and involvement of our young generation will be essential. In these uncertain times, it is all the more important that the rule of law with an independent judiciary should remain an unshakeable foundation of our society.

A statue of Themis, the Greek goddess of justice, is seen in the basement of Hong Kong’s new Court of Final Appeal building. Photo: EPA

This is an appropriate moment to reflect on the court’s progress over the last 18 years. The court must essentially be judged by the quality of its jurisprudence. It can confidently be claimed that its judgments are widely respected both within and outside Hong Kong where they are increasingly cited. The court has earned its place among final appellate courts around the globe. I believe that, with successive generations of judges, it will go from strength to strength.

The composition of the court has the unique feature of having an overseas judge. The court is made up of five judges. Four are Hong Kong judges: the chief justice and three permanent judges. (Where one of them is unavailable, his place is taken by a non-permanent Hong Kong judge chosen from the panel of retired Hong Kong judges.) The remaining judge is a non-permanent overseas judge selected from the panel which has consisted of eminent jurists from Australia, New Zealand and the United Kingdom. These are the three jurisdictions with whose legal traditions Hong Kong has the closest affinity. Although the remaining judge can be a non-permanent Hong Kong judge, a convention has been established since 1997 that an overseas judge would be selected.

From time to time, reservations have been expressed by some commentators, including academics in mainland China, as to the presence of the overseas judge. One mainland academic expressed the view that all judges of the court should be Chinese nationals with the right of abode in Hong Kong. Recently, another opined that the feature of the overseas judge should be regarded as a transitional arrangement for 50 years. I understand these views. But I respectfully do not agree with them.

It is important to emphasise two matters. First, the overseas judge swears the same judicial oath as any Hong Kong judge: To uphold the Basic Law, to bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to administer justice without fear or favour. When he sits, he is discharging his duties as and only as a Hong Kong judge in our own times and circumstances. Secondly, he is one member of a collegiate court. The five judges may end up in agreement or disagreement. Each judge is independent and makes an essential contribution. No judge enjoys any special position in judicial decision-making.

The arrangement of the participation of an overseas judge cannot be regarded as any infringement of China’s sovereignty or Hong Kong’s autonomy. In fact, it is by the exercise of sovereignty (by permitting this in the Basic Law ) and autonomy (by making the arrangements) that he is invited to sit.

It is in the best interests of Hong Kong as part of China under “one country, two systems” to have an overseas judge on its final appellate court. First, his participation ensures that the court benefits from comparative perspectives and experience. Secondly, it is an arrangement which has gained the confidence of the public as well as that of the international community. Thirdly, it is conducive to enhancing confidence in the independence of our judiciary. I believe that the participation of the overseas judge should be regarded as a lasting feature of the court. It must be acknowledged that the arrangement is a unique one. But so is the great concept of “one country, two systems”.

In reflecting on the past 18 years, a special feature of the new order should be referred to. As the court had held, the Standing Committee of the National People’s Congress has the plenary power to interpret the Basic Law and any interpretation is binding on the courts in Hong Kong. This power is expressly provided for in the Basic Law and reflects the provision in the Chinese constitution empowering the Standing Committee to interpret laws.

Under the Basic Law, our courts are authorised to interpret it. But the court has the duty to refer the interpretation of the excluded provisions to the Standing Committee. Those provisions are those concerning affairs which are the responsibility of the central government, that is, essentially defence and foreign policy and those concerning the relationship between the central authorities and the region.

Since 1997, the Standing Committee has issued four interpretations: one, in 1999, to override the court’s judgment in the right of abode cases; two, in 2004, to lay down the process for political reform; three, in 2005, to deal with the length of the chief executive’s term; and four, in 2011, upon a judicial reference by the court, to deal with the doctrine of state immunity. The second and third interpretations were issued in the absence of any legal proceedings.

The right of abode episode was very controversial. I believe that it provided a salutary experience in the formative years of the new order. The episode has led to a consensus in Hong Kong and, I believe, also in Beijing that apart from an interpretation of an excluded provision made on a judicial reference by the court, the Standing Committee’s power to interpret should only be exercised in the most exceptional circumstances.

In any event, as I have publicly stated, the Standing Committee should refrain from exercising its power to override a court judgment in Hong Kong, especially one of the Court of Final Appeal. Although it would be legally valid and binding, such an interpretation would have an adverse effect on judicial independence in Hong Kong. I believe that this view is widely shared in Hong Kong. However, my understanding is that it is not shared by the authorities in Beijing. They consider that an interpretation even after a court judgment could be justified in very exceptional circumstances and this should not adversely affect judicial independence in Hong Kong.

The Basic Law contains no sunset clause whereby it will automatically cease to have any effect on June 30, 2047. But it provides that the previous capitalist system and way of life shall remain unchanged for 50 years. This reflects the 1984 Joint Declaration in which China stated that its basic policies regarding Hong Kong will remain unchanged for 50 years.

The destiny of Hong Kong is and will forever be as part of China. Photo: Nora Tam

We are already past the one-third mark of the 50 years. The future after 2047 will be an internal matter for China. I believe that it will have to be settled in the early 2030s. Extensive discussion and consultation will be required. The coming 10-15 years in the run-up to those discussions will be very important.

The destiny of Hong Kong is and will forever be as part of China. In the governance of Hong Kong, the sovereignty of China must always be fully respected. It is always important to remember that “one country” as well as “two systems” are essential and integral parts of the formula. So long as this is fully recognised, I have every confidence and expectation that Hong Kong as part of China will continue to enjoy our own system and that the rule of law with an independent judiciary will continue to thrive in the coming years and beyond 2047.

The honourable Andrew Li Kwok-nang was first chief justice of the Court of Final Appeal from 1997 to 2010

Zhou Zunyou says China is flouting its own legal standards in its sweeping detention of rights lawyers

In an unprecedented crackdown starting from July 9, Chinese authorities interrogated and detained more than 200 human rights lawyers and activists, attracting condemnation worldwide. While most of these people have been released, around 20 remain in custody, including five lawyers and an administrative assistant at the Beijing-based Fengrui Law Firm, which has been the focus of the crackdown.

Shortly after the action, China’s state-run news media launched a smear campaign, characterising the targeted individuals as “a major criminal gang” and accusing them of exploiting contentious cases to stoke controversy, discrediting the government and severely disrupting the public order. Some of the detainees, including Fengrui’s director, Zhou Shifeng, have been shown on television making confessions.

When a few UN human rights experts spoke out to urge the central government to “stop what appears to be targeted police harassment and intimidation of lawyers”, Chinese official media argued that the crackdown “is nothing more than a legitimate law enforcement action, and should not be interpreted as a human rights issue”.

If China truly wants to convince the world that this campaign is not “a human rights issue”, the prosecutors will have to prove beyond a reasonable doubt that the apprehended lawyers have broken criminal law. For the time being, it is key for China, during the pretrial period, to adhere to its own criminal procedure law and show respect for widely recognised international standards of criminal justice.

However, the fact is, even before trials begin, the state media have pronounced these people guilty; since their detentions, none of the Fengrui suspects have had any – let alone immediate and adequate – access to their own lawyers.

The conducting of a “trial by state media” prompted the criticism of He Weifang, a prominent law professor at Peking University, for violating the presumption of innocence, a central principle of criminal procedure as guaranteed by Article 12 of the Criminal Procedure Law. In one of his recent posts on Sina Weibo, a Twitter-style microblogging service, he pointed out that the state- and party-controlled media has the duty to abide by the law, and that taking sides by playing up and sensationalising the guilt of people before their trials begin would make it impossible for the court to adjudicate the case impartially.

Many days after the detention of Zhou and the smear propaganda against him, his family has not been contacted by the authorities. When Yang Jinzhu stood up as Zhou’s defence lawyer, he was warned and threatened by the authorities several times. Viewed as a “fight-to-the-death lawyer” by his peers, Yang himself is also a target of the crackdown.

According to Article 83 of the Criminal Procedure Law, investigators must notify family members of the detainee within 24 hours after detention. An exception to the notification rule is allowed only if the family members cannot be contacted, or if crimes endangering national security or crimes of terrorism are suspected and the notification may impede the investigation.

A possible reason for denying notification is that Zhou’s detention involves charges of “endangering national security”. However, state media reports on the case only mention charges of “disturbing the public order”, with no trace of accusations related to national security.

Apart from the Fengrui detainees, lawyers Sui Muqing, Xie Yang and activist Gou Hongguo have been placed under “residential surveillance” on charges of endangering national security. Their whereabouts remain unknown.

According to Article 73 of the Criminal Procedure Law, in cases of crimes endangering national security, crimes of terrorism and particularly serious crimes of bribery, the police may apply “residential surveillance” in an undesignated place. If they do so, police investigators may refrain from disclosing the reasons for the detention and the whereabouts of the detainee, and defence lawyers must obtain prior permission from the police to meet their clients.

In essence, the police are allowed to hold people in an unknown location for up to six months without access to their lawyers and family members.

Under the International Covenant on Civil and Political Rights, which China has signed but not ratified, detainees have two rights: the right to be informed promptly of the reasons for their detention; and to be provided with adequate time and facilities to prepare for their defence, which includes communicating with counsel of their own choosing. It is clear that articles 83 and 73 are far from being compatible with these minimum international standards.

Lawyers are an indispensable force for securing the rule of law, a goal that is being pursued by the Communist Party, and they should never suffer persecution or any other kind of sanctions for discharging their professional duties.

The irony of the crackdown is that the detained lawyers, whose job is to fight hard to help other people, are sitting in cells themselves without access to their own defence counsels. Even if the detained lawyers have committed crimes, the criminal proceedings against them must also be lawful, justified and in line with international standards.

Dr Zhou Zunyou is head of the China section at Germany’s Max Planck Institute for Foreign and International Criminal Law, and the author of Balancing Security and Liberty: Counter-Terrorism Legislation in Germany and China

Robert Tibbo says the government must stop deluding itself that the abuse of Erwiana was an isolated case, and take steps to broaden protections for all foreign domestic helpers

The former employer of Erwiana Sulistyaningsih was convicted in the District Court on Tuesday of a multitude of violent crimes that left the Indonesian domestic helper a shell of her former self. The physical and psychological abuse she endured was horrific. She had little left in terms of her physical integrity and fought hard to hold onto her humanity.

Yet, since Erwiana’s case came to light barely a year ago, the Hong Kong government has taken little to no action to constructively address the inequities, discrimination and risks that foreign domestic helpers face.

The government continues to hold to the status quo position, arguing that the prevailing policies, legislation, administration and due diligence practices do not require any real change. Erwiana’s case exposed blatant shortcomings of the system, which regulates and supposedly protects foreign domestic helpers. And yet the government has been reluctant to take concrete steps to provide greater protection.

It is apparent that the government has treated Erwiana’s case as a one-off incident, a statistical outlier. It apparently continues to fail to recognise that Erwiana’s case is one of a multitude of cases of abuse of varying degrees suffered by foreign domestic helpers in Hong Kong. Such abuses include non-payment or partial payment of wages, denial of statutory holidays, psychological abuse, intimidation, and acts of violence, including sexual violence.

An Amnesty International report published in late 2013 found that almost 60 per cent of all foreign domestic helpers in Hong Kong were subjected to verbal abuse by their employers. Almost 20 per cent suffered violence at the hands of their employers and, in 2014, the Equal Opportunities Commission found that 6.5 per cent suffered sexual abuse.

Foreign domestic helpers being compelled by law to reside in their employers’ homes is the core of the problem that has allowed these abuses to take place, as they did in Erwiana’s case.

Previously, the government has said that, “the importation of [foreign domestic helpers] has been allowed to meet the acute and long-standing shortage of full-time live-in domestic helpers in the local labour market. Any change to the requirement that FDHs must reside in employers’ residences (the ‘live-in’ requirement) will go against the rationale for importing FDHs and the fundamental policy that local employees should enjoy priority in employment.”

This declaration is without evidential foundation and is a scare tactic to support this arbitrary policy. In recent weeks, the government has used its massive financial resources to arrest a small number of helpers who had been living outside their employer’s home. A few employers were also arrested. Had Erwiana been allowed to live out, it is highly unlikely that her former employer would have been able to torture her to the extent that she did.

Erwiana’s case is not the first of its kind; it is one in a continuing series of horrific crimes committed against foreign domestic helpers in Hong Kong by employers. This has, arguably, amounted to a consistent pattern of abuse and violations of foreign domestic helpers’ rights. Simply put, these are the consequences of systemic failings in law, policies and practices.

The government has a track record of avoiding, and at times even dismissing, the rights and legitimate concerns and interests of Hong Kong’s most vulnerable groups, even when voiced in public. The consequences of this reality have too often compelled those affected to bring legal challenges through the courts to secure their rights and interests, and to bring about changes in policy and legislation. Otherwise, the government does nothing.

The government was, and continues to be, embarrassed by the very public exposure of Erwiana’s case. On another level, there have been ongoing efforts by NGOs and migrant worker groups to engage the government, voicing concerns to bring about necessary changes in policies, legislation and administration in light of the crimes committed against Erwiana.

Despite the cumulative effects of public exposure and non-governmental groups exerting pressure, the government conveys a combination of reluctance and inability to bring about necessary change. Its past conduct in dealing with rights violations against the more vulnerable groups, including foreign domestic helpers, shows that the government is apparently continuing to struggle with the concept and practicalities of bringing about necessary change to the system.

Laws are not enacted by those in authority simply to control individuals, but should be formulated in light of the practical realities individuals face in pursuing their needs and interests. People have the capacity to do what is proper, fair and reasonable in managing their lives, including protecting themselves. The current policies and legislative framework regulating the lives of domestic helpers unfortunately tilt heavily towards an authoritarian regulatory regime.

This regime has allowed employers, who are in a position of authority, to commit a vast array of abuses on a more vulnerable and clearly defined social group. It has also led to an environment in which Hong Kong people have become bystanders accepting such injustices.

That is not to say that there are not good employers here, but the shortcomings in the system, as highlighted in Erwiana’s case and the report and statistics that Amnesty International published in 2013, have led to obvious and unacceptable abuses.

That regulatory regime prevented Erwiana from being able to protect herself. Hong Kong’s government and society failed Erwiana by failing to provide the fundamental protections she was entitled to, at a time when her safety and security were substantially compromised.

With Erwiana’s case, the judiciary has so far fulfilled its role in prosecuting Erwiana’s employer, but justice was required at a far earlier stage – before Erwiana was held captive and tortured.

If the government continues to fail to bring about the necessary changes to ensure that foreign domestic helpers are afforded the protections they are entitled to, including avenues for redress, it is certain that a number of judicial reviews and constitutional challenges, which have not yet been brought before the courts, will be introduced to force such changes to be made.

Robert Tibbo is a barrister-at-law and legal adviser to the Hong Kong Helpers Campaign